(Note: A Summary of Opposition Comments on Bill 91 as of October 3, 2013 follows this blog post.)
In early June 2013, the Honourable Jim Bradley, Ontario Minister of the Environment tabled Bill 91, the proposed Waste Reduction Act.
Despite major concerns raised by a large cross section of Ontario businesses, the Association of Municipalities of Ontario (AMO) and other stakeholders, groups and observers since then, Bradley and the Ontario government are mistakenly rushing the bill through, having started second reading debate on September 24.
We write this to join the chorus of those who say: ”Mr. Bradley and Ms. Wynne – On Bill 91, go back and start again.” (The phrase rhymes, some of you may notice.)
Bill 91, if passed as drafted, should be re-named the Waste Management Consultant and Lawyers Job Creation Act before it receives final reading because it probably will create as many jobs for these folks as the Charter of Rights and Freedoms did in the early 1980s. (Had the Charter not passed, unemployment amongst Canadian lawyers no doubt would be much higher in the 2010s.)
But most assuredly the environment probably will not benefit from the passage of Bill 91 and serious problems such as climate change, which are intimately connected to waste diversion, will remain unaddressed.
Bill 91 – like all waste diversion policy and law developed in Ontario since the early 1980s – is focused primarily on the third “R” recycling. This is because this third “R” does not challenge the business models, consumer habits and ideological constructs that need to be set on their ear. The way forward is through reliance on the other Rs such as – “rethink,” “redesign,” “reduce” and “re-use.” And this often is hard work.
We need to develop community composting programs that will actually recover useful organic waste and teach children and young people about the importance of composting. And create jobs. We need to run re-use and repair cafes. And create jobs. I have the 10-speed bike I bought in 1984. It’s in perfect shape because I’ve maintained it. And created jobs at bike repair and maintenance shops.
I have resoled my shoes for decades. My ex wife and I diapered our daughters in cloth diapers, relying primarily on a diaper service. I try, as much as possible, to eat lower on the food chain, buy local food, and avoid packaging.
These behavior changes require education (in some cases, deep education) and value changes to counter the influence of advertisers and social agents who promote excessive and often mindless consumerism. And we need to retrain and re-value cobblers and other folks who repair our equipment and sharpen our lawn mowers, and value the work of those who collect our used containers for refilling and scavenge for used furniture at sidewalks.
In sum, we need to stress job-creation in the less energy intensive “Rs” – reduce and re-use – by redesigning products for disassembly and promoting import substitution. For decades we have substituted cheap energy and resources for human labour. There are many who would argue that it has proven to be a deal with the devil. We can, and indeed, must go back to a smaller, human scale.
Perhaps the proposed revised Act should be renamed the Rethink Our Waste Act – An Act to Empower Ontario Politicians, Civil Servants, Industry, the Public and others to promote Waste Reduction, Re-use and Recycling as well as Water and Energy Conservation through Rethinking our Priorities, Product Redesign and Lifestyle Changes and Redesign Conflict-plagued Agencies that Purport to Serve the Public Interest.
I’m just kidding of course. This title would be Monty-Pythonesque. But I am trying to make a serious point.
Law reform is needed
To the credit of the Ontario Liberals, they decided to embark on law reform to address waste issues when they first took power in 2003. There was a sense that all was not well in Ontario waste policy. While Toronto had implemented a Green Bin program for its organics and food wastes in 2002 after then-Toronto Mayor Mel Lastman had been pummeled on the Adam Mines open pit dumping debate in 2000, most observers knew that eventually Michigan would try to close its doors to Toronto’s solid waste.
Besides, the attack on the Adams Mine project was payback of sorts after one of Ontario’s best-ever and most competent ministers of the environment, Ruth Grier, was viciously attacked by Gord McGuinty, the promoter of the Adams Mine project and his friends in the Progressive Conservatives, including all the candidates who ran for the Mike Harris-led Progressive Conservative (PC) party in the 1995 provincial election. And especially those who ran in northern ridings (e.g., Timmins—James Bay) where political operatives for the PCs and Liberals were lamenting the prospective death of the Ontario Northland railway and the slow decline of northern communities at the hands of those unfair and nasty “dippers” (as the Tories often call the NDPers).
So in 1999, then-firebrand city councilor (and future federal NDP leader) Jack Layton, future Toronto mayor (and current President and CEO of WWF Canada) David Miller, the Toronto Environmental Alliance and other ENGOs hatched a plan. Drive the Adams Mine project off the rails by describing the project as Dante’s Inferno. Get revenge for poor Ruth. And it worked!
800 kilometres to the south, after a few disasterous garbage and sewage sludge spills between 2003 and 2005, and reports of disgusting odours from Toronto’s mix of sewage solids and residuals by Michigan residents living adjacent to the giant Michigan landfills the state Governor Jennifer Granholme, knew she had then Toronto Mayor David Miller and Ontario Premier McGuinty by their proverbial balls and a can’t lose re-election issue. Then Toronto’s municipal solid waste crossing into Michigan was found to contain tonnes of aluminum soft drinks cans and “radioactive” smoke detectors in 2006. Granholme was re-elected by a landslide. David Miller and Toronto council began to seriously court the private owners of the large Green Lane landfill near London, and consummated the marriage in 2007, buying the landfill site for a cool $200 million despite concerns about the appropriateness of such a model and concerns raised by the Oneida First Nation.
Pretty much all of this is on the public record. Check it out for yourself.
You also can review my book, There Is No Place Called Away: Why Exporting Garbage Is Not Sustainable or Sensible (2012), available for purchase on Amazon, which chronicles most of the history on the Adams Mine fight. http://www.amazon.ca/There-Place-Called-Away-Sustainable/dp/1470197251
In addition, Gord McGuinty has written his own tell all on the Adams Mine fight called Trashed (2012) which is available by contacting him. However, McGuinty conveniently neglects to mention his role in funding local residents in Kirkland Lake to build a 40-foot tall ice and snow sculpture of Ruth Grier in February 1992, portraying her as a “wicked witch” riding in from Etobicoke, Ontario to prevent them from amazing jobs sorting Toronto’s stinking garbage to pick out the meager recyclables that would then probably have to be shipped back to markets in Toronto or more distant locations such as developing nations.
Meanwhile product stewardship, first “legislated” for soft drinks containers in the Ontario Environmental Protection Act (but never regulated) in 1976, had floundered. While the NDP had passed Bill 143, the Waste Management Act in 1992 (which yours truly helped draft) expanding the original 1976 EPA provisions to apply to “products that pose waste management problems” such as disposable diapers, razors, and cameras, the civil servants in the “Ministry of Soft Drinks” thought this was preposterous and drafted the briefing notes to ensure they never would be used. And so it was. At least until 2012. But that is another story related to biomedical waste.
Fast forward to Bill 91.
In fairness, Bill 91 does contain some very useful ideas. In general there are two categories of EPR: Individual Producer Responsibility (IPR) and Collective Producer Responsibility (CPR). Under a CPR approach the costs of collecting and treating mixed waste are shared between producers based on their current market share. Bill 91 is intended to promote IPR because CPR, as legislated under the WDA, has proven to be a failure.
In June 2013, I was asked to prepare a paper for the Law Society’s Six Minute Environmental Lawyer. The paper is titled “Waste Diversion in Ontario in 2013: The proposed Waste Reduction Act (Bill 91), EPR, “Eco-Fees” and Missed Diversion Targets.” (If you would like to obtain the paper that I prepared with Sharon Sam, please e-mail me at email@example.com) (In addition, some key points from the debate in Hansard on Bill 91 are summarized further down below.)
We need some background on the mess we’re in.
Ontario has been trying to address waste disposal since the early 1990s, as referenced above.
In February 1991 the NDP government established the Waste Reduction Action Plan (“WRAP”) and created the Waste Reduction Office at the Ontario Ministry of the Environment (“environment ministry”). In 1992 and 1993, a succession of major pieces of legislation were passed and a dizzying array of policies was established, including a ban on solid waste export for every municipality except the City of Toronto (which was paired with York Region to find a new waste landfill site) and a ban on solid waste incineration.
One of the goals of WRAP was to ensure that Ontario diverted 50 per cent of its waste from disposal by 2000. To help WRAP achieve this goal, the 3Rs (i.e., reduce, reuse and recycle) were introduced into regulations. The 3R regulations (see: Appendix – regulatory context for more information) are: (i) O. Reg. 101/94 – Recycling and Composting of Municipal Waste, (ii) O. Reg. 102/94 – Waste Audits and Waste Reduction Workplan, (iii) O. Reg. 103/94 Industrial, Commercial and Institutional Source Separation Programs, and (iv) O. Reg. 104/94- Packaging Audits and Packaging Reduction Workplans. These regulations were promulgated in March 1994 and implemented between 1994-1995 to help municipalities and the IC&I sector to achieve provincial waste reduction targets.
Among other things, the 3R regulations required that southern Ontario municipalities with over 5,000 residents create a Blue Box program.
Bill 143, the Waste Management Act, 1992 significantly amended the EPA, provided a wide range of new regulation-making authority to the environment ministry. Bill 143 also expanded the 1976 producer responsibility provisions, which were originally included to address concerns about litter and environmental and energy problems stemming from the use of non-refillable soft drink containers. As noted below, these provisions were subsequently used by the environment ministry to address issues related to pharmaceutical wastes.
Two key components of the 1991 WRAP never implemented by environment ministry are: (1) a comprehensive system for financing waste management and waste diversion, including the overall province-wide Blue Box system, and (2) a sound plan for educating the public about the importance of waste diversion. Meanwhile in the early 1990s the NDP Ontario government and municipalities, backstopped to a modest degree by the soft drink industry, poured money into the Blue Box system to the tune of $120 million per year.
Now for the policy that suffered a brutal still-birth.
When I worked as senior policy advisor at the Waste Reduction Office of the environment ministry between 1991-93, I was the lead author on a discussion paper on financing waste diversion and waste management in Ontario. The paper provided a path-breaking discussion on role and responsibilities for funding the 3Rs and disposal of residuals. (Some of the text from my 1993 paper was lifted word for word in an RCO report on the same topic in 1998, always leaving me to wonder who was the “leak.” No doubt some big-wig at the environment ministry.)
The paper also examined the possible role of environmental taxes, pay-as-you-throw fees for waste disposal, and improving the shared model that had been developed by the Waste Reduction Advisory Committee (WRAC). But in April 1993, a new round of budget cuts in the Ontario environment ministry had been announced. WRAC was closed. Shortly thereafter, the innovative discussion paper was buried alive. The deputy minister decided to encourage the private sector to develop its own plan to fund recycling rather than support a Ontario government-led approach. The environment ministry, and the Ministry of Finance, had been burned on the Tire Tax (a brainchild of Liberal Treasurer Bob Nixon in the 1990 provincial budget that was abandoned in the 1993 budget by the NDP).
Indeed, I recall that the principal comments offered on the draft paper by the Ontario deputy minister of the environment — in thick black marker — were that:
1) his grandmother would not understand many of the concepts in the paper; and
2) she would certainly not agree with pay-as-you throw fees for her garbage.
To which I would say this: well, Mr. former DM, what does your grandmother and perhaps your mom, bless their hearts, think of the staggering muddle we have made of the Waste Diversion Act, its eco-taxes and missed diversion targets and all the related bizarre politics and machinations? Of course, pay-as-you throw has become common place all over North America, leading to an epidemic of illegal dumping in some rural areas. Just as we feared would happen at the Ontario environment ministry back in 1993.
Why was the 1993 paper buried?
The theory amongst many of the intelligentsia in the NDP Cabinet office and the soft drink industry was that Ontario environment ministry should not be in the middle of policy disputes between stakeholders about how to finance waste diversion and waste disposal. Leave this to the private sector. Thus cabinet office and the Ontario environment ministry began to downsize its waste diversion policy capacity and dismantle the WRO.
But, with the odd exception such as Apple and Google, the private sector has virtually no holistic and synthetic policy capacity, and no interest in delivering environmental protection in the public interest. And agencies such as the Waste Diversion Ontario (WDO) and the IFOs are incapable of doing this. How can the WDO (or its successor, the proposed Waste Reduction Agency) consider the fact that aluminum production in the Saguenay, fueled partly by Ontario soft-drink consumers, has helped, in the past four decades, to destroy the beluga whale populations in the St. Lawrence River? Or that micro-plastics are filling our lakes and rivers and probably will begin to seriously affect aquatic ecosystems, if they haven’t already?
These are issues that the Ontario environment ministry, Environment Canada and other public health and natural resource agencies should grapple with.
Would we divide the airsheds over Toronto into 20 slices and allow companies and consultants to decide how much pollution control was appropriate, depending no doubt on how much residents in each airshed were willing to pay? Would we close public drinking water testing and then not control what standards labs had to meet to operate? (Whoops, I guess we tried that one and seven people died and 2,400 people in Walkerton got very sick and many suffered permanent kidney damage and other health effects as a result. A tragedy that shows what can happen when policy setting is directed by the private sector.)
Once the Harris government was elected in June 1995, Ontario’s waste diversion policy went entirely off the rails. The Harris government earnestly proclaimed that waste incineration, fueled by the private sector, would save the taxpayers money. But the private sector knew better. They needed those lucrative public sector contracts, funded by taxpayers, to pay for their massive and expensive plants.
By 1998 reports and statistics compiled by Statistics Canada and other agencies showed that Ontario was lagging in reaching its diversion rates. Even though Ontario was the only province that had passed 3Rs regulations (making diversion and waste reduction activities mandatory for most large waste generators), Ontario was two per cent below the national average in terms of waste diversion!
The Waste Diversion Act, 2002 (WDA) enacted in 2002 was intended to provide a sound financial footing for waste diversion. The goal of the Progressive Conservative party in tabling the law in 2002 was in part to mollify those critics who argued that the Blue Box system was not adequately supported by the packaging industry (that was benefiting from use of it) but also to fend off advocates of deposit-return systems (for alcohol, wine, soft drink, water and juice beverage containers).
In short, I believe this is how we started to get into this mess.
Our politicians didn’t have the guts to let the civil servants do their jobs and give them the resources to do so. Nearly everyone in Ontario now seems to believe that the private sector should run pretty well every aspect of waste diversion and disposal, some of the most complex and important activities that environmental managers undertake. Waste management is too important to be left to the private sector. It affects water quality. It affects climate change. We are landfilling and burning valued resources every day.
The question our descendants for generations hence will ask while they mine landfills for these resources (and probably risk life and limb in the process) is this: were our ancestors crazy? Or what? And, I suppose many of our children and grandchildren will conclude we were.
Let’s look at the role of the Office of Environmental Commissioner of Ontario in 2012
Curiously, the office of Environmental Commissioner of Ontario decided to host a round table on waste diversion issues in November 2012. Despite the fact that the express legal mandate of the office is to review decisions on laws, policies and instruments after Cabinet and the Ontario Legislature have made decisions and/or passed new laws and decision notices are posted on the Environmental Registry. The office of the ECO is not intended to be a policy shop or think tank, dictating what proposed laws and policies should be. Indeed, the two Reports of the Task Force on the Environmental Bill of Rights (EBR) in 1992 expressly warned that office should not engage in this type of activity. In Hansard debates on the Environmental Bill of Rights (EBR) in 1993 the then-minister, the Honourable Bud Wildman and senior environment ministry officials, assured that this would not happen.
But it has.
Arguably, the office of the ECO’s waste diversion round table report was a problematic beginning for the latest round of law reform. But things got even stranger. At subsequent public events I attended, the Ontario Minister of the Environment announced that he was drawing key policy recommendations from the ECO round table report. Which turns the whole paradigm of review by an independent office of the legislature on its head. Especially when one considers that the stakeholders who attended the round table event were handpicked by the commissioner and his staff.
Then the office of the ECO published a blog in June 2013 praising Bill 91 and saying that waste diversion law reform was long overdue. Cycles within cycles it seems. See: Finally Moving Forward: Overhauling Ontario’s broken waste diversion framework; Posted on June 24, 2013 by Environmental Commissioner of Ontario http://www.eco.on.ca/blog/2013/06/24/finally-moving-forward-overhauling-ontarios-broken-waste-diversion-framework/)
Democracy and political independence in action? I will leave it to you, gentle readers, to decide what really is at work.
Certainly, Michael Harris, the PC Environment Critic, was not amused. The day before the office of the ECO’s waste diversion round table was scheduled to take place he issued his own ideas in a press release about what law and policy reforms on waste diversion should contain. Which allegedly angered Commissioner Miller and his staff
Interestingly enough, the EBR allows the legislature to specifically request that office of the ECO prepare a special report or a study on a topic of importance, in the same manner that the Auditor General has been asked to report on irregularities at ORGNE, salary abuses at Hydro One by Eleanor Clitheroe et al., MPP expense claim abuses, etc. This power has never been used. And why would it? The office of the ECO serves up regular round table and “own motion” reports without ever having been asked, causing civil servants to scurry off in ten thousand directions.
Donald J. Savoie is the author of the book Whatever Happened to the Music Teacher? How Government Decides and Why (2013) and a keen observer of how public administration has changed in Canada in the past four decades. In a summary of his book published in the Globe and Mail in January 2013, Savoie wrote:
“Thirty years ago, Anglo-American politicians set out to make the public sector look like the private sector. They decided to grab hold of the policy-making levers and push public servants to manage operations along the lines of their private-sector counterparts.”
There’s plenty of evidence to suggest that politicians have gained the upper hand in shaping policies. Evidence-based policy-making has lost currency, as has the policy advisory role of senior public servants. But there’s also plenty of evidence to suggest that management reform measures have failed.
It’s not too much of an exaggeration to write that the policy advisory role of public servants in Anglo-American democracies has been turned on its head. Multiple sources of information and evidence-based policy advice no longer matter as they once did. Today, if policy making in a post-positivism world is a matter of opinion, where 2 + 2 can equal 5, then Google searches, focus groups, public opinion surveys and a well-connected lobbyist can provide any policy answer that politicians wish to hear.
Public servants of yesteryear would emphasize proper data-gathering procedures and produce analyses with predictive power. Politicians grabbed the policy-making levers and decided to turn bureaucrats into better managers. Public servants were not about to admit that their management skills were lacking, so politicians looked to the private sector for inspiration. As a result, strategic plans were turned into business plans, citizens into customers and cabinet into a powerless board of directors, and attempts were made to tie pay to performance.
The notion that public administration could be made to look like private-sector management has been ill-conceived, misguided and costly to taxpayers.
Management in the private sector has everything to do with the bottom line and market share. Administration in the public sector is a matter of opinion, debate and blame avoidance in a politically charged environment. It doesn’t much matter in the private sector if you get it wrong 40 per cent of the time so long as you turn a handsome profit and increase market share. It doesn’t much matter in the public sector if you get it right 99 per cent of the time if the one per cent you get wrong becomes a heated issue in Question Period and the media.
Public servants now produce all manner of reports and navigate various accountability requirements to fabricate a bottom line. The result: Ottawa has an oversupply of officers of parliament, accountability and oversight processes, and performance and evaluation reports. Hundreds of reports are carted every year to parliament, where they remain unread unless one of them has information to embarrass the government.
Some final words
As a former Senior Policy Advisor, Waste Reduction Office in the Ontario environment ministry (1991-1993), and based on what I have seen thus far, I would offer the following recommendations to the Ontario government and the environment ministry:
– Go back and start over on Bill 91;
– Listen less as you start the next round to the consultants who have been working on these issues for decades. Gen Xers, Gen Yers, and millennials are impatient with Boomers on matters like waste and 3Rs and just want us to get out of the way so they can work on supposedly “harder” issues such as climate change. But we also need to help all Canadians, and especially Gen Yers and millennials, understand that issues such as waste diversion are tied to climate change. As I first remarked to an RCO waste conference in 1991, our handling of waste issues has helped our civilization turn the planet’s atmosphere into the “great big garbage dump in the sky.”
– Jettison the failed Authority/TSSA model;
– Give the environment ministry staff the resources necessary to do their jobs as regulators and over-seers and don’t seek to farm out (or “move offshore”) these difficult functions to agencies like the WDO, private sector entities, industry associations and their consultants who have competing and divergent interests. Let’s rekindle pride in the members of the Ontario civil service who were regarded in the 1980s as of the best trained set of government staff, lawyers and advisors in the world;
– ditch the failed WDO/IFO concepts and re-engage with waste issues by devoting government staff who are directly accountable to the minister and the public through the legislature to manage sectoral relations;
– don’t let the soft drink industry/food conglomerates, the bottled water companies, the plastic resin manufacturers and packaging makers run the environment ministry; and
– make us proud that we elected you (not multinationals) to govern us.
NOTE: This blog article also reflects research and contributions from Sharon Sam, a third-year law student at the University of Ottawa, the co-author of the Law Society paper on Bill 91. Ms. Sam also assembled the summary of Hansard comments that appears below.
* Apologies: technically this title should follow protocol and read, the Honourable Madam Premier Wynne and the Hon. Minister Bradley. But I wanted the title to rhyme.
Summary of Opposition Comments on Bill 91
As of October 3, 2013
(Page references are to pages of Hansard for the Ontario Legislature)
• June 6, 2013
o summary: the main thing the Opposition had to say regarding of Bill 91 on its tabling in the Legislature was that they had a similar strategy and the Liberals were taking a page out of their book
• September 24, 2013
o page 3114 – Conservatives
– The bill doesn’t actually set up IPR but instead sets up a convoluted process for businesses to join collectives and intermediaries
– IPR in other jurisdictions means that businesses actually have to manage the recycling. This is not the case in Bill 91
– the system will cause tension b/w municipalities and producers
o page 3116 – Conservatives
– over 90% of tires were being diverted from landfills in the free market system before the introduction of the tire stewardship program
• October 1, 2013
o page 3353 – Conservatives
– Bill 91 does nothing to address the double HST taxation issue
o page 3354- Conservatives
– the government should no hand monopoly control of an entire market to a private sector organization or impose taxes on Ontarians
– at 17:40 pm the MPP makes a comment re: producers being able to manage individually or collectively that seems similar to the Bill 91 structure
o page 3355- Conservatives
– comments re the elimination of WDO through Authority (as being false)
– directs attention to c. 8(14) – where the board directors of the WDO continue in the Authority
– operating agreement is the same – c. 10(7)
– clearly not a new agency
– Bill 91 does not define a producer but it is left for regulation
– clause 22 would allow the authority to impose a tax on businesses
– The inspectors (c. 29) represent a duplication of effort and the existing environment ministry already has enforcement officers
o page 3356 – Conservatives
– c. 44(5) which enables the authority to determine a compensation formula where no agreement b/w the municipality and producer focuses on perpetuating a fight b/w municipalities and businesses than setting priorities and reducing waste
– there should be no authority – just the ministry – who should establish targets, standards, and monitor outcomes and enforce rules. Should not be left to an unaccountable government agency
– The authority is unaccountable – disconnected from Parliament, not subject to FIPPA and can only be reviewed if the Auditor General of Ontario feels it’s necessary
o page 3357 – Conservatives
– intermediaries are essentially IFOs
– the option to wind down eco tax programs is left to regulation which is problematic (although recognizes Bill 91 did not claim to get rid of Eco-taxes – the Ontario Liberal Party did)
• October 2, 2013
o page 3405 – Conservatives
– while the bill proposes to deal set recycling targets for the IC&I recycling the I, C&I sector is only mentioned in strategy and not in the proposed act – it would be left to regulation
– all important decisions are being left for later
• October 3, 2013
o page 3413 – NDP – substantive criticisms
– provides a legal framework but leaves many of the details to be left to regulation
– enables the government to set targets but does not mandate the government to or set out targets
– the text of the bill is vague. significant delays while regulations are developed
– the bill is too complex (e.g., pitting producers against municipalities)
– does not give attention to the hierarchy of the 3Rs regulation
– adding clear definitions for waste reduction, reuse recycling and disposal would strengthen the act
– lack of detail re: monitoring and enforcing high standards of waste management and recycling services
o page 3414 – NDP – substantive criticisms
– fails to provide any oversight and compliance relative to recycling standards for waste service providers
– all parties need to comply to waste service standards
– concerns re transfer of enforcement to the authority will reduce the independence and fairness of prosecutors under the act –> lack of accountability. prosecutors will be accountable to who?
– will the authority have the resources to monitor and audit and have an adequate number of inspectors?
– not clear as to whether the authority can enforce standards for all participants and this must be made clear in the legislation
– not accountable – and should be placed under FIPPA
– Bill 91 does not address the lack of uniformity of recycling services across Ontario
o page 3415 – NDP – substantive criticisms
– phase-in for organics collection is too slow
– Bill 91 does not work with other provinces or the federal government to set timetables that would reduce packaging
– concern that intermediaries will recreate the problems of IFOs – danger that individual producers will be able to off-load responsibility